Gray v. State

• Court: Mississippi Supreme Court
• Writing for the Court: Before BANKS, P.J., MILLS and EASLEY, JJ.
• Citation: Gray v. State, 799 So.2d 53 (Miss. 2001)
• Decision Date: 25 October 2001
• Docket Number: No. 1999-KA-02036-SCT.,1999-KA-02036-SCT.
• Parties: Viola GRAY v. STATE of Mississippi.

799 So.2d 53

Viola GRAY v. STATE of Mississippi.

No. 1999-KA-02036-SCT.

Supreme Court of Mississippi.

October 25, 2001.

Oby Thomas Rogers, Collins, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Jackson, Attorneys for Appellee.

Before BANKS, P.J., MILLS and EASLEY, JJ.

EASLEY, Justice, for the Court:

¶ 1. On October 19, 1999, Viola Gray ("Viola") was convicted in the Circuit Court of Covington County, Mississippi, for the murder of her husband, Larry Gray ("Larry"), and sentenced to life imprisonment. On July 9, 1999, the trial conducted a hearing on pretrial motions. The trial court considered various motions filed by Viola including her Motion for Change of Venue.

¶ 2. At the hearing on the pretrial motions, the trial court confirmed that the case was set for trial on July 19, 1999, in Collins, Mississippi. The case had previously been set for July 14, 1998, and continued based upon a docket conflict. It had also been set for January 17, 1999, and continued based upon a docket conflict. However, on July 19, 1999, the case was again continued because the State had failed to produce the State Crime Lab Test results. Trial began on October 18, 1999.

¶ 3. On October 18, 1999, the day of the trial, Viola brought a motion for continuance based on the District Attorney Office's production of twenty-two (22) 35 millimeter photographs taken the day of the murder. The motion to continue was denied, and the trial proceeded. It is from the conviction for murder that Viola now appeals to this Court.

FACTS

¶ 4. Viola and Larry were married and resided together in Covington County, Mississippi. While still married to Larry, Viola became involved with Bruce McDonald ("McDonald"). Viola and Larry had not been living together for about six months prior to Larry's death. The defense called McDonald to testify. McDonald testified that he pled guilty to accessory after the murder, receiving five years with four years suspended. On September 12, 1997, McDonald had initially confessed to killing Larry, but he recanted the same day and gave a videotape statement to officers Don Sumrall ("Sumrall") and Darrell Woodson ("Woodson"). McDonald testified that on September 12, 1997, at about 6:30 a.m. he drove Viola to Larry's house and then drove up and down the road three times before stopping on the side of the road in front of Larry's house. McDonald honked the horn on his Volvo White GMC eighteen wheeler truck. Larry was on his carport and came toward the truck. Viola reached for the gun and took it from the cover. Larry came around the front of the truck and grabbed McDonald's door and began opening it when McDonald took the gun from Viola. McDonald kicked Larry back off the truck door and shot between Larry's legs. The first shot hit the ground. McDonald's second shot hit Larry in the leg. McDonald only fired two shots at Larry. McDonald's gun held five shots. After being shot in the leg, Larry went back across the road. McDonald got back into the truck and released the brake. Viola grabbed the gun and jumped out of the truck. Viola chased Larry and shot him three times. McDonald testified that he believed Viola shot Larry once in the back of the leg and twice while standing over him. Larry never got up from the last shot Viola fired.

¶ 5. McDonald testified that he then carried Viola back to her daughter's apartment to wake her kids for school and get a couple of bags of clothes. McDonald took the gun to Milton Campbell to dispose of it for him.

¶ 6. Jean Gray ("Jean") testified as a witness for the State. Jean testified that back in September, 1997, she was living in Mount Olive, Mississippi, located in Covington County in a trailer across the road from Larry's house. Jean had known Larry for approximately 25 years and Viola for approximately 22 years. Jean had been married to Larry's deceased brother. In September 1997, Viola and Larry were separated and were not living in the same house.

¶ 7. Jean testified that at approximately 6:30 a.m. on the morning in question, at daylight, she heard a horn honk. When she looked outside she saw an eighteen wheeler, without its trailer.¹ Larry came from his carport toward the truck. Jean continued to watch until Larry got to the truck. She had started back to her bedroom when she heard a gunshot. Jean heard a voice say, "I'm going to kill you, mother f—cker." Viola jumped out of the truck and ran behind Larry with the gun. Viola shot Larry while he was face down shuffling around on the ground. Viola had the gun pointed at Larry's back. Jean only saw Viola shoot Larry two times. Nothing was blocking Jean's view from her window. Larry was still alive, moving, when Jean ran to him. There was no doubt in her mind that Viola shot Larry. Jean gave her statement to the police approximately four or five days later.²

¶ 8. Dr. Steven Hayne ("Dr.Hayne"), the State Pathologist, testified on behalf of the State. Dr. Hayne performed the autopsy on Larry's body on September 12, 1997, at the Rankin County morgue in Pearl, Mississippi. Four gunshot wounds were discovered in the autopsy. Gunshot wounds were located one to the right elbow, one to the back of the right thigh, one to the front of the left thigh and one to the lower left part of the back. The bullet that entered through the back went upward through the left kidney, the stomach, and the diaphragm, striking the heart and embedding in the left chest near the left nipple. The organ damage caused extensive bleeding. The volume of blood loss was lethal, producing death by acute exsanguenation (bleeding to death). Dr. Hayne testified that it was the shot to Larry's left lower back that caused his death.

¶ 9. On appeal, Viola raises the following issues:

I. Whether the trial court erred in not granting Viola's request for a continuance when twenty-two, 35 millimeter photos were produced twenty minutes after the trial was set to begin.

II. Whether the trial court erred in excluding newspaper article establishing the time the sun rose on the day of the crime, when same was offered to rebut the testimony of the State's witness that there was sufficient light to see the crime occur.

III. Whether the trial court erred in failing to grant Viola's request for a change of venue.

LEGAL ANALYSIS

I. CONTINUANCE

¶ 10. Before trial began on October 18, 1999, the trial court conducted a pretrial motion hearing on Viola's motion to continue. At approximately 9:20 a.m., on the day of trial, the State produced twenty-two 35 millimeter photographs of the crime scene. The photographs were marked for identification and listed as Defendant's Exhibits No. D-1 through D-22. The photographs depicted the location of the body in relationship to the other landmarks at the crime scene. These photographs had remained in the possession of Van Tuggle, a deputy with the Covington County Sheriff's Department, until the day of the trial. Deputy Tuggle had shot the pictures the day of the murder. The State had never been furnished the photographs or informed of their existence until the day of trial. The State represented to the trial court that Deputy Tuggle had informed them only that morning that he just found the photographs.

¶ 11. The State had previously furnished six Polaroid photographs in discovery that depicted the same body and location shown in the 35 millimeter photographs. The State argued that the 35 millimeter photographs were only duplicate photographs. The State also informed the trial court that since the 35 millimeter photographs were only received that morning that it did not intend to use them at trial. The State only furnished the 35 millimeter photographs for the defense's use.

¶ 12. The trial court and the attorneys had previously viewed the crime scene themselves. Viola argued to the trial court that the case should have been continued because the six photographs furnished by the State did not show any landmarks. On appeal, Viola argues that photographs might have been helpful in the preparation of her defense.

¶ 13. The trial court ruled on Viola's request for continuance as follows:

The Court: The new photos that were just provided this morning are D-1 through D-22, inclusive for identification. I've looked at the photos. I see nothing in D-1 through D-22 that would change the Defendant's defense. Of course, they show slightly different angles of the body and are taken at different distances from the body than those pictures that show the body, the "S" numbered exhibits. So the motion for continuance is denied. The motion in limine, however, is granted, and the State is hereby precluded from offering D-1 through D-22 for identification. Of course, the Defendant is free to use them if he chooses or if she chooses. Pardon me.

Defense: Your Honor, in addition to that, we would also ore tenuously file another motion regarding precluding the State from using what has been identified as S-1 through S-6. The basis of that motion is that these, if the photographs that have been identified as Defendant's identification 1 through 22, if they had been produced, we may have taken a different approach to this case. Because in S-3 through S-6, which are the Polaroid's that the State intends to produce, show no, there's no reference to major landmarks, and a big issue in this case is going to be an eyewitness who comes up, you know, nearly seven days later and says, you know, I saw it, and it's going to be an issue because the Court had already allowed us or is going to allow us to go out and see the scene. But these photographs that were produced today do show the body in relationship to major landmarks.

The Court: And are you saying by these, by using those photos it could change your defense?

Defense: It could, this could potentially change my defense.

The Court: How so?

Defense: If I would have been able to develop lines of questioning regarding what the—

The Court: You still can. I'm saying you can. They cannot;

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